Complainant argues all of these issues may be decided by the court on Summary Judgment. Respondent argues that while many of these issues may be decided on Summary Judgment, at least the issue of interim earnings requires a formal hearing.

Discussion

   29 C.F.R. § 18.40 provides that, within certain specified time limits, any

party may move for summary decision on any or all issues in a proceeding. An Administrative Law Judge "may enter summary judgment . . . [if the evidence shows] that there is no genuine issue as to any material fact and that a party is entitled to summary decision." 29 C.F.R. § 18.40(d) (1998). Both parties have moved for summary judgment on the issues of back pay, front pay, prejudgment interest, and benefits. Of course, they disagree strenuously over which side should prevail on each issue.

1. Calculation of Back Pay

   In my Recommended Decision and Order on Remand of November 7, 1995 ("R.D.O.R."), I found that Complainant was entitled to an award of back pay for the period of time he would have worked but for the wrongful termination by Respondent. For reasons detailed in that Decision, Complainant was awarded back pay from November 1988 until final judgment, minus any interim earnings. The award assumed Complainant would have been hired by Respondent for the period of November 21, 1988, to December 31, 1988; after that, it was assumed Complainant would have found at least 6 months of work per year with Respondent or another similar employer. The amount of the award was based on 40 hours of straight time and 32 hours of overtime per week at $6.50 per hour. Complainant's request for compensation for lost promotional opportunities was denied.

   The Administrative Review Board (ARB) affirmed most of the Recommended Decision on September 6, 1996. (See Sept. 6, 1996 Final Decision and Order ("1996 ARB Dec.")). The ARB agreed that back pay should continue past the date that Complainant would have been laid off, since it was likely Complainant would have been rehired by Respondent; the ARB also agreed that Respondent's denial of access and subsequent nationwide reporting of that denial made it impossible for Complainant to find similar work. The ARB found the assumptions of 6 months of work per year and 32 hours of overtime per week reasonable. However, the ARB felt

that the wage used in calculating back pay should be the average hourly amount earned by decontamination technicians nationwide, including any annual increases (but not promotions). The parties were encouraged to agree on an average hourly wage for technicians nationwide.

work (although actually only 4 weeks worth appear in the 1988 totals). Thus, neither calculation accurately represents what Complainant would have worked and earned.

   The best method is to calculate 1988 back pay based on 4 weeks of 88 STE hours per week work, which is what the evidence shows Complainant probably would have worked if he had been hired. This is consistent with the oft-stated goal of back pay: to make the victim of discrimination whole and restore him to the position that he would have occupied in the absence of the unlawful discrimination. (See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)). As discussed above, Respondent's method results in Complainant being paid for one less week than he probably would have worked, while Complainant's method results in an extra two weeks. Neither truly restores Complainant to the economic position he would have occupied but for the unlawful discrimination.

   I do not believe this finding to be inconsistent with the ARB's instructions. The ARB specified that for 1988, calculations must use the wage rates Complainant would have earned working for Respondent. I do not believe that the statement "[f]or all years, back pay shall represent six months of work . . ." means that the ARB thought Complainant should be compensated for only half the number of weeks he would have worked in 1988. A more reasonable interpretation is that for all years, Complainant shall not be paid more than the equivalent of six months work at the specified rates. The six month figure is speculative anyway, since it is impossible to know the actual amount of time Complainant would have worked each year for Respondent or other similar employers after 1988.

   Therefore, I find that Complainant is entitled to $2,288.00 in back pay for 1988. This is based on four weeks of work during the six week period, at 88 hours STE per week, and $6.50 per hour. This total represents what he would have earned in the relevant period of 1988, regardless of when it is "credited" or "paid."

1b. Back Pay from 1989-1987

   Complainant was awarded back pay after 1988 because I found, and the ARB agreed, that absent Respondent's actions, it was likely Complainant would have found future employment with Respondent or some other employer in the nuclear field. (See R.D.O.R.,

p. 14-15; ARB Dec., p. 3). Normally back pay runs until final judgment, but the parties agreed in their June 10, 1998 stipulations to a back-pay cut-off date of June 30, 1997. (See Respondent's Exhibit D to Cross Motion for Partial Summary Judgment; Complainant's Exhibit 1 to Motion for Summary Judgment). Because the back pay award for 1988 is discussed above, I now concern myself only with 1989 to June 30, 1997.

   I also do not think Complainant's methods are consistent with the ARB's instruction that "back pay [will] be calculated at six months' work per year, at 40 hours straight time and 32 hours per week overtime." I believe this instruction serves two purposes: first, to provide a fair estimate of what Complainant might have worked in future years, since it would be impossible to know with any certainty; and secondly, to avoid a fight over detailed minutiae, which could drag this matter on for years and deny Complainant the compensation he is clearly due. Since it would be impossible to know which six months in any given year Complainant would have worked, the ARB tried to avoid a dispute with its instruction; however, Complainant's methods re-inject disputes over these kinds of details. Thus, I find that Respondent's reports comply more closely with both the letter and the spirit of the ARB's decision.

   Complainant cites other decisions which say that overwhelming exactitude is not required in damage awards, and that any uncertainty must be resolved in favor of the Complainant. (See, e.g., Lederhaus v. Donald Paschen, 91-ERA-13, Decision and Order of Secretary (Oct. 26, 1992). I see no conflict with that here. I need not resort to such a "rule of thumb" when there are other ways of resolving the issue. Here I have chosen to rely on more qualified experts and reports which closely follow the ARB's instructions.

   Therefore, I grant summary judgment in favor of Respondent, and find that Complainant's back pay award shall be based on Respondent's calculations of 2,288 hours per year multiplied by each year's stipulated nationwide average wage for nuclear decontamination technicians. This results in a total 1989-1997 back pay award of $216,090.00, and a total back pay award for 1988-1997 of $218,378.00.

2. Calculation of Front Pay

   Again, the parties are fairly close on the amount of front pay, yet they have been unable to stipulate to an exact amount. Previous decisions awarded front pay for a total of 5 years from the end of the back pay period. (See R.D.O.R. at 19-20; ARB Dec. at 7-9; ARB Remand at 3-5). Since the parties have agreed to a back pay cut-off date of June 30, 1997, the front pay period will end on July 1, 2002. The difference between the parties primarily results from the

number of work weeks per year each side assumes.

   The same factors involved in my decision on back pay also apply here. First, Respondent's experts simply appear to be better qualified than those relied on by Complainant. I find nothing improper in their use of "rounded" figures, in part because I am reluctant to find fault with the methods chosen by such experts; I also can find nothing wrong with their underlying assumptions and calculation methods, and the rounding is often to Complainant's benefit.

   Even though Complainant's calculations are more detailed, Respondent's seem to follow the ARB's Order more closely: "would have worked. . . for 6 months per year. . . ." I simply can not reconcile the "6 months" instruction with Complainant's attempt to include extra work weeks in each year, or a total of 1.8 work weeks over the entire 5 year period.

   Again, I note the case law which says uncertainties should be resolved against the discriminatory party. However, I do not think I need to resort to this "rule of thumb" in this instance. Hobby I results in Complainant receiving an extra 1.8 weeks of pay, in violation of the ARB's order to calculate the award on the basis of six months work per year (or impliedly, 26 weeks). If the ARB wished to allow for the possibility of more than 26 weeks, it would have specified which 6 months of each year to use.

   First, I find no merit in Respondent's position. It is obvious why the ARB failed to mention interest on the front pay award. When the ARB's decision was written, the case had not yet gone to final judgment, and the parties had not stipulated to cut-off dates for back and front pay. Therefore, back pay was still accruing, and the front pay award had not yet become due. There simply was no reason for the ARB to discuss front pay interest at that time.

Wilson Metal Casket Co., 24 F.3d at 841-42 (citations omitted). The Shore court then went on to say:

Although Wilson involved back pay, and the present case involves front pay, Wilson nevertheless governs the present case. Under the peculiar circumstances now before us, in which the pertinent judgment on front pay was entered subsequent to the accrual of a substantial portion of front pay that is as yet unpaid, the rationale for awarding prejudgment interest on front pay is precisely the same as that described in Wilson for awarding such interest on back pay.

Shore, 42 F.3d at 380.

   I am aware that Shore involved a Title VII claim. However, I still find its reasoning persuasive. No contrary authority has been cited by either party, and I have found none in my own search. Therefore, I grant Summary Judgment for Complainant on the issue of front

Complainant's Statement on Summary Judgment, p. 13, quoting Kentucky State Police, 80 F.3d at 1098. Read out of context, it appears that the Sixth Circuit adopted the holding of the Second Circuit. However, both of the quoted sentences refer to Second Circuit decisions and are therefore not the true holding of the Sixth Circuit.

   The Sixth's Circuit's true holding in Kentucky State Police is found a few lines further down: "We are inclined to agree [with the Second Circuit], but we believe that the decision whether to award compound or simple interest is in the trial court's discretion." Kentucky State Police, 80 F.3d at 1098. Unfortunately, the decision does not provide any guidance for a trial court to use when facing such a choice.

Willy v. The Coastal Corp., 85-CAA-1, (ALJ, May, 8, 1997)).

   Respondent argues that Complainant's interest calculations are incorrect because they assume that interest accrues in the same period in which the loss occurs. (See Respondent's Cross-motion for Summary Judgment, p. 9). Respondent argues that each quarterly interest calculation should be based on the previous quarter's cumulative principal total. This becomes clearer with a few examples.

   In the fourth quarter of 1988, Respondent calculated ,716.00 in back pay principal owed, but no interest. The first quarter of 1989 shows a cumulative back pay principal of $6,521.00, but only $47.00 in interest; the $47.00 represents the interest owed on the ,716.00 from the fourth quarter of 1988. In sum, Respondent argues no interest accrues until after the principal is owed, i.e., the next quarterly period. (See Staller report, p.3). The Staller report argues this is logical, because "a loss which occurs in a particular time period generates interest which would be paid in the following time period." (Staller report, p. 3).

   In contrast, Complainant's reports calculate interest by including the new principal owed in each quarter. For example, in the fourth quarter of 1988, Complainant finds $2,288.00 of back pay principal owed, plus $62.92 in interest. For subsequent years, each quarter's new principal is added to the existing cumulative principal, then interest for that quarter is calculated on the new total. (See Hobby II, p. 5).

   After a review of the briefs and the evidence, I agree that the calculation method used by the ALJ in the Willy decision is correct: calculate cumulative principal owed each quarter, then multiply that total by the applicable interest rate to find the interest owed for that quarter. (See Willy v. The Coastal Corp., 85-CAA-1, App. A).

   To summarize, Complainant is awarded interest on both back and front pay, using simple interest only. Additionally, each quarter's interest calculations shall be made on the cumulative principal total, including any principal earned in that quarter. The parties shall recalculate interest awards in conformity with these instructions and submit them to the court.

4. Benefits

   There are two main categories of benefits in dispute: 1) Retirement benefits; and 2) Medical benefits. The ARB's September 6, 1996 Final Decision and Order stated:

Respondent shall pay Complainant any benefits to which he would have been entitled if he had not been discriminated against, including out of pocket medical expenses that would have been paid by health insurance available to him as Respondent's employee . . . from the date of the discriminatory refusal to hire until final judgment."

(ARB Dec., pp. 10-11).

   However, before I discuss benefits, I must first address another issue raised by the parties. As part of its submission in opposition to Complainant's Summary Judgment Motion, and in support of its own Cross-motion for Summary Judgment, Respondent submitted the affidavit of Ms. Sally Maybray. (See Exhibit H to Respondent's Cross-motion for Summary Judgment).

   Ms. Maybray is a Human Resources Manager with Respondent's successor in interest, Westinghouse Nuclear Services Division. According to Ms. Maybray, an employee who worked the same number of hours as Complainant would only be entitled to purchase medical and dental insurance; he would not have been entitled to any other benefits. Ms. Maybray also stated the employee's costs for the various levels of medical/dental coverage, and provided a copy of the insurance plan which was available for purchase. (See id., p.2).

opportunity to depose Ms. Maybray, and his expert witnesses were denied the opportunity to respond to her statements. (See id., p. 9).

   In response, Respondent seems to argue that the failure to list Ms. Maybray is excused by alleged statements of Complainant's counsel that he did not need any more discovery; based on this statement, Complainant claims all work on discovery responses ceased. (See Respondent's Supplemental Memorandum of Law (December 4, 1998), p. 3). Respondent also cites Brandt v. Vulcan, Inc., 30 F.3d 752 (7th Cir. 1994), for the proposition that sanctions are only appropriate when a party has violated a discovery order; in this case, no discovery order was ever requested or issued.

   However, I agree with Complainant in several respects. First, as I read the relevant rules, Respondent was under a continuing duty to disclose the identity of persons who may have held relevant and discoverable information. (See 29 C.F.R. § 18.16(a); FRCP 26(a)). Even if there was no continuing duty, it is clear that Complainant made numerous requests for this information. (See Complainant's Response to Respondent's Cross-motion for Summary Judgment, pp. 4-6).

   Secondly, I also agree that there can be no substantial justification for Respondent's failure to identify Ms. Maybray earlier; I also note that Respondent's only attempt to justify this failure seems to be the argument that Complainant's attorney "represented that he did not need any further discovery." (See Respondent's Supplemental Memorandum of Law (December 4, 1998), p. 4).

   Third, I believe that the Brandt case is inapposite for several reasons. It addresses the question of sanctions under FRCP 37(b), not Rule 37(c) as is the case here. (See Brandt, 30 F.3d 752, 756-57). It would also be unrealistic to require Complainant to move for a discovery order on these facts. Respondent had provided the names of other witnesses in response to discovery requests; Complainant had no way of knowing that Respondent would choose to introduce additional witnesses at this late date.

   Finally, the advisory committee's notes for FRCP 37, subdivision (c) explain that the rule provides a "self-executing sanction for failure to make a disclosure required by Rule 26(a), without the need for a motion under subdivision (a)(2)(A)." These notes are not law, but they are persuasive evidence of the intent of the drafters of the FRCP.

   While I agree with Complainant that it would be inappropriate to simply allow in the affidavit, I think it is possible to resolve this issue so that the failure becomes harmless. I believe that this evidence is certainly relevant, and indeed could be dispositive once properly admitted. In order to cure Respondent's failure, I order that Respondent provide Complainant with the opportunity to depose Ms. Maybray, and to fully and completely comply with any and all existing discovery requests. Additionally, since Respondent failed to properly disclose Ms. Maybray in the first place, I impose an alternate sanction as provided by FRCP 37(c)(1); Respondent shall pay all reasonable costs related to the deposition of Ms. Maybray.

   Based on the foregoing, it would be improper to grant summary judgment on the issue of benefits for either party at this time. Therefore, both parties' motions for summary judgment on the issue of benefits are denied.

5. Interim Earnings

   To correctly compensate Complainant, the calculations must deduct "any amount that [Complainant] has earned in interim earnings between the issuance of the [ALJ's] Recommended Decision and Order on Remand and the date of final judgment." (ARB Dec., p. 7). Complainant argues that summary judgment on this issue is proper; Respondent argues that a formal hearing is needed.

   The parties mainly disagree over Complainant's interim earnings from December 1994 to present. Respondent argues that depositions and discovery show a monthly shortfall in Complainant's family finances of $500 to $800 per month. (See Respondent's Cross-motion for Summary Judgment, p. 13). For example, in a recent letter to this court responding to Complainant's response (discussed below), Respondent pointed to the continued use of two cellular telephones by Complainant's family as evidence of some other source of income. Respondent therefore argues the amount of interim earnings is a disputed issue of material fact making summary judgment inappropriate. (See id., p. 14).

   Complainant acknowledges the apparent monthly shortfall, but responds that this truly represents the family's financial situation. (See Complainant's Response to Respondent's Cross-motion for Summary Judgment, pp. 12-14). Complainant points to deposition testimony and other discovery wherein the Complainant and his family admitted to sinking deeper in debt each month, and where they explained that the monthly shortfall is covered through credit cards, mortgages, and personal loans. (See id.).

   Additionally, Complainant notes that the ARB has already stated that $500.00 a year, or $2,500.00 total, should be deducted from Complainant's front pay award. (See ARB Dec., p. 8). Complainant argues it would be improper to deduct both the $500.00 and the actual amount of interim earnings since this would result in a "double-dip" for Respondent. (See Complainant's Response, p. 11).

   I first note that this is yet another dispute which arises from the slow progress of this case. The ARB decided in September 1996, nearly a year before the beginning of the front pay period stipulated to by the parties, that a deduction of $500.00 per year from the front pay award would be appropriate. The ARB arrived at this figure by taking the average of Complainant's earnings over the six years prior to the hearing. (See ARB Dec., p. 8). Thus, the $500.00 was merely a speculative estimate of what Complainant probably would earn in the future; the ARB could not have known that the front pay period would actually begin to run before final judgment, thus making it possible to determine the true amount of interim earnings for at least some years.

   I find that for the portion of the front pay period which has already run, I need not resort to a speculative estimate of what Complainant might earn. Complainant is also correct that Respondent should not be allowed to "double dip." Therefore, for each year, Respondent is entitled either to the $500.00 yearly deduction, or a deduction equal to the amount of proven earnings for any year which has already passed. If, at final judgment, a portion of any front

pay year has already passed, the deduction shall be either $500.00 or the actual amount earned prior to that date, whichever is higher. For any full years left to run in the front pay period, the $500.00 deduction shall stand.

   Because I believe there is still a "genuine issue of material fact" as to actual interim earnings, summary judgment is not appropriate on this issue at this time.

   It is therefore ORDERED that:

   (1) Respondent shall pay Complainant a back pay principal for 1988 of $2,288.00;

   (2) Respondent shall pay Complainant a back pay principal for January 1989 to June 30, 1997 of $216,090.00;

   (3) Respondent shall pay Complainant a total front pay principal of $154,695.00;

   (4) Respondent shall pay Complainant prejudgment interest on both front pay and back pay. Prejudgment interest is to be calculated using simple, not compound interest, and in conformity with the methods outlined above;

   (5) Both Complainant's and Respondent's Motions for Summary Judgment on the issue of benefits are hereby DENIED;

   (6) Complainant's Motion for Summary Judgment on the issue of interim earnings is also hereby DENIED.

   So ORDERED this the 17th day of December, 1998 at Metairie, Louisiana

       RICHARD D. MILLS
       Administrative Law Judge